Signature Properties No. 5 Pty Ltd v Penrith City Council

[2021] NSWLEC 1023

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Signature Properties No. 5 Pty Ltd v Penrith City Council [2021] NSWLEC 1023

Hearing dates:

Conciliation conference on 21 and 22 December 2020, final agreement filed 13 January 2021

Date of orders:

15 January 2021

Decision date:

15 January 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend Development Application DA20/0449 (the DA) to rely on the plans and documents referred to in Condition 1 of the conditions annexed and marked ‘A’.

(2) The written request pursuant clause 4.6 of the Penrith Local Environmental Plan 2010 prepared by Mecone dated December 2020 seeking to justify the contravention of clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009 in relation to the number of motorcycle parking spaces, is upheld.

(3) The appeal is upheld.

(4) The DA for the construction of a two-storey boarding house with eleven (11) boarding rooms and four (4) at grade car parking spaces and associated landscaping at 36 Jamison Road, Kingswood (legally known as Lot 20 in Deposited Plan 209236) is approved subject to the conditions set out in Annexure ‘A’.

(5) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $7,600.00.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Penrith Local Environmental Plan 2010

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2) 1997

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Signature Properties No. 5 Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Penrith City Council (Respondent)

File Number(s):

2020/264655

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA20/0449 (DA). The DA sought consent for the construction of a 12 room boarding house with at grade car parking (the proposal) at 36 Jamison Road, Kingswood (the site) by Penrith City Council (the Council).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 and 22 December 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions.

5. The amended proposal is for the demolition of existing structures and construction of a two storey boarding house, containing 11 boarding rooms and associated at grade car parking and landscaping. The proposal has been amended to resolve the contentions raised by the Respondent.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, the parties agree, and I am satisfied, the Penrith Local Environmental Plan 2010 (PLEP) is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the amended proposal is permissible with consent.

9. I am satisfied that the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) is an additional relevant environmental planning instrument and the site is located within an accessible area as defined in the ARH SEPP. Accordingly, cll 29-30A of the ARH SEPP apply to the amended proposal.

10. Evidence of owner’s consent has been provided with the DA.

11. As required by the EPA Act, the DA was publicly exhibited between 23 July and 6 August 2020 and submissions have been considered in the Respondent’s assessment of the DA.

12. Since the amended proposal reduces the number of boarding rooms and increases building setbacks and landscaped area, the Respondent submits, and I am satisfied, that re-notification of the amended proposal is not necessary.

13. The amended proposal is consistent with all relevant development standards and associated built form controls set out within the PLEP.

14. The parties agree, and I am satisfied, the amended proposal complies with the must not refuse criteria for boarding houses set out in cl 29 of ARH SEPP.

15. Similarly, the amended proposal complies with the relevant development standards for boarding houses set out in cl 30 of ARH SEPP, with the exception of cl 30(1)(h), which relates to the provision of bicycle and motorcycle parking. The amended proposal seeks to vary this development standard to reduce the number of motorcycle parking spaces provided, from 3 to 2.

16. Clause 4.6(3) of the PLEP requires consideration of a written request from the Applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

17. Clause 4.6(4) of the PLEP requires the consent authority to be satisfied the applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

18. Additionally, cl 4.6(4)(b) of the PLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.

19. The Applicant has provided a cl 4.6 written request, prepared by Mecone and dated December 2020, seeking to justify non-compliance with the development standard set out in ARH SEPP at cl 30(1)(h), and to demonstrate the R2 zone objectives set out in PLEP have been met despite the non-compliance.

20. The parties agree, and I am satisfied, the provision of 2 motorcycle parking spaces for 11 boarding rooms, and the corresponding minor non-compliance is reasonable and necessary, and there are sufficient environmental planning grounds to justify the non-compliance. Specifically, the omission of 1 motorcycle parking space allows for a corresponding increase in the extent of landscape area and the introduction of a large canopy tree with a mature height of approximately 8m. The amended proposal still provides bicycle and car parking at the rates set out in ARH SEPP at cl 30 and the experts agree that adequate alternative on street parking is available in the immediate vicinity of the site.

21. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the relevant ARH SEPP development standard.

22. Additionally, I am satisfied the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land have been considered, in particular cl 7(1). Given the site's previous residential use, the land is unlikely to be contaminated or to require remediation.

23. I am satisfied a BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate.

24. I am satisfied the requirements set out at cl 4 of Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) have been addressed by the amended proposal and appropriate conditions of consent have been imposed in relation to water quality and quantity.

25. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

26. The Court orders that:

1. The Applicant is granted leave to amend Development Application DA20/0449 (the DA) to rely on the plans and documents referred to in Condition 1 of the conditions annexed and marked ‘A’.

2. The written request pursuant clause 4.6 of the Penrith Local Environmental Plan 2010 prepared by Mecone dated December 2020 seeking to justify the contravention of clause 30(1)(h) of State Environmental Planning Policy (Affordable Rental Housing) 2009 in relation to the number of motorcycle parking spaces, is upheld.

3. The appeal is upheld.

4. The DA for the construction of a two-storey boarding house with eleven (11) boarding rooms and four (4) at grade car parking spaces and associated landscaping at 36 Jamison Road, Kingswood (legally known as Lot 20 in Deposited Plan 209236) is approved subject to the conditions set out in Annexure ‘A’.

5. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $7,600.00.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (258401, pdf)

**********

Amendments

15 January 2021 - Correction to [8].

Decision last updated: 15 January 2021